Lowry v Coordinator-General

LAND COURT OF QUEENSLAND

CITATION:

Lowry -v- Coordinator-General [2011] QLC 73

PARTIES:

David Lowry
(applicant)

v.

Coordinator-General
(respondent)

FILE NO:

AQL204-11

DIVISION:

General Division

PROCEEDING:

Application to call rebuttal evidence

DELIVERED ON:

25 October 2011 [Ex Tempore]

DELIVERED AT:

Brisbane

HEARD AT:

Brisbane

MEMBER:

His Honour, PA Smith

ORDER:

1.     The applicant’s application shall not be ruled upon until the final determination of this matter.

2.     The applicant is allowed, subject to the final ruling on the application, to call the rebuttal evidence.

CATCHWORDS:

Oral application to call rebuttal evidence – challenge made to an expert’s factual assumptions in circumstances where no challenge was made in cross-examination – considerations of equity, fairness and expediency – evidence allowed subject to final ruling

APPEARANCES:

Mr G Allan of Counsel for the applicant
Mr D O’Brien of Counsel for the respondent

SOLICITORS:

Ms Megan Tilbrook of Anderssen Lawyers for the applicant
Ms Charlotte Gill of Corrs Chambers Westgarth Lawyers for the respondent

1. [The applicant sought to call rebuttal evidence from eight witnesses who had filed affidavits in these proceedings. The basis of the evidence was to rebut evidence given by the respondent’s valuer as to his inspections of sales 2, 3 and 5.

2. Mr Allan of Counsel summarised his application as follows:[1]

   “… this evidence is sought to be called and relied upon by the applicant to rebut what, on the applicant's case… is false evidence given under oath by Mr Litherland as to the extent and nature of his inspections.

   It goes to an issue of fact in this case, namely, the values… which he has applied - I use that word loosely - in his apportionment using the summation method his primary check method. And he agreed, during his cross‑examination, that it was critically important to confirm the accuracy of the information that he has given evidence about in respect of each of those sales that he's adopted for himself, if he was adopting information from another source. That appears at 4-28 of the transcript, lines 48 to 55.

   He's agreed, in cross-examination, that in a compulsory acquisition matter it was critically important for the valuer to undertake his own investigations of the sales evidence. That appears at page 423, lines 40 to 45 of the transcript. He agreed that it's critically important for the valuer, when preparing a report in a compulsory acquisition matter, for the valuer, himself, to carry out his own inspections of the subject property and the sales evidence. And that appears at page 423, lines 48 to 60, and also at page 424, lines 1 to 10.

   Further, he's agreed, in cross-examination, that it's critically important for the valuer preparing a report in a compulsory acquisition matter to carry out his own analysis of the sales evidence upon which he has a regard to for the purpose of assisting him in determining the value of the subject property. And that appears at page 4-24, lines 12 to 18.

   Further, he's agreed that it's critically important when…